Who is Responsible?

In the past, the law concerning a property owner’s responsibility for natural conditions1 occurring on her land has been that she is generally not liable for physical harm caused to outsiders, even if the conditions may be highly dangerous or inconvenient to neighbors. It’s important to note that this rule was developed at a time when most land was generally raw and undeveloped, so it would have been unduly taxing and unrealistic to inspect the expanse of property to ensure safety.

But With Every Rule, There Are Exceptions

For example, an owner of urban land who fails to exercise reasonable care about the condition of his tree might be subject to liability to persons using an adjacent public highway who are injured by the tree falling. That exception derived from a recognized distinction between urban and rural settings – that is, a rural landowner had no duty to address the safety of his property when such a duty would exist for an urban landowner. Of course, much has changed since that time when urban and rural areas were distinct and separate. Nowadays, that line frequently is blurred. In light of increased urbanization of communities, the exception has become more the rule.2

Currently, the general analysis of allocating liability between a landowner and outsiders for damage resulting from a fallen tree is largely based upon a negligence standard. A tree falls, property and/or individuals are injured, and liability is assessed. Generally, the landowner has a duty of common prudence and must exercise reasonable care to maintain his property and those conditions existing on it, such as trees. If the landowner had no actual or constructive knowledge of a defect in the tree which led to its collapse, he is not responsible for the resulting damage.

As an example of this evolved view, the North Carolina Court of Appeals recently considered a situation where a tree located on private property fell on and severely injured someone standing on a boat floating on a public waterway. The Court determined that a landowner has a duty to exercise reasonable care regarding natural conditions on his land which lies adjacent to a public highway in order to prevent harm to travelers using the highway. That reasonable care means that liability exists only if the landowner had actual or constructive notice of a dangerous natural condition. For the injured party to prove the landowner liable, he needed to show that the tree constituted a dangerous condition to the travelers of the adjacent public road and the landowner had actual or constructive notice of the dangerous condition and failed to eliminate it.

The Devil’s in the Details

However, in North Carolina this is not the complete analysis. Since courts have applied a negligence-based standard to the landowner, certain defenses may be available for the landowner.  An example of this occurred back in the mid 1960s. The McGee Family owned property in Catawba County (the McGee Property) in absentee fashion (they apparently did not visit the property frequently). They sold a neighboring piece of land to a third party who later conveyed the parcel (the Rowe Property) to the Rowe Family. A large oak tree, existing through natural growth, was located on the McGee Property along the property line with the Rowe Property. At the time the McGee Family sold the Rowe Property, the oak tree was hollow, partially rotten, and leaned in such a way to suggest that if it fell, it would land on the Rowe Property. The McGee Family was aware of the tree’s condition when it sold the Rowe Property.  The tree subsequently fell and damaged the Rowe Property. The Rowe Family and their insurance carrier filed suit against the McGee Family seeking relief for the damage. North Carolina appellate courts had not yet considered the issue and there was not a consensus from other states. Based on the above facts, the Court determined that “where a landowner knows that he has a tree on his property which is in a dangerous condition and which is likely to fall and injure the property of an adjoining landowner, he has a duty to eliminate such danger.”

But, that was not the entire story. Evidence also showed that approximately eight to twelve months prior to the tree’s collapse, the Rowe Family discovered the tree’s condition and they obtained permission from the McGee Family to cut it down. Obviously, the Rowe Family did not follow through. As a result of these additional facts, the Court carefully expanded its consideration beyond the actions of just the McGee Family. Specifically, it recognized that a jury could interpret from these facts that the Rowe Family led the McGee Family, who were absentee owners of the McGee Property, to believe that the tree had been cut down and the danger eliminated. Thus, by the Rowe Family being aware of the danger, requesting and receiving approval from the McGee Family to remove the danger, then failing to do so, a jury could determine that they contributed to the problem negating their claims for relief. In North Carolina, if a claimant of negligence contributes to the underlying problem, they can be barred from obtaining relief.

Acts of God

A separate and common defense for landowners of fallen trees is pretty straightforward – sometimes things just happen. There is a little provision within the law called “vis major.” This premise is basically defined as a loss that results from a natural cause without human intervention and that could not have been prevented by reasonable care – an act of God. This is the situation when Mother Nature makes an unwelcomed visit and leaves in her wake downed trees causing property damage. In that situation, assuming the tree owner had exercised reasonable care in maintaining the tree and did not have actual or constructive knowledge of any issues, the general rule is the person on whose property the tree lands (be it real estate, a car, or an appendage) shoulders the cost.

So, what does this mean for us North Carolinians attempting to accommodate our beautiful treescapes with impending disaster and liability? Based on the existing law of our state and the general perspective offered by other jurisdictions, the typical urban landowner needs to pay attention to both their landscaping and that of their neighbors. Courts have noted that the fairly minor expenditures in time and money necessary to inspect and secure trees in a developed area pale in comparison with the increased danger and possible damages caused by a fallen tree. What if you or your property softens the landing of your neighbor’s felled tree? North Carolina and other state courts have recognized certain evidence of the tree’s prior condition that may be used to show whether the tree owner was negligent in exercising reasonable care. For example, photos of the tree, reports by tree professionals, testimony of neighbors and others who frequently had visual access to the tree, examples of insects found in or on the tree, pieces of the tree itself, correspondence between neighbors concerning the tree, and the location of the tree (near a well traveled walkway or playground, as examples). But remember, particularly in North Carolina which continues to recognize contributory negligence as shown by the McGee/Rowe story above, evidence that the recipient of the fallen tree knew of the imminent danger and did not make efforts to resolve the situation may negate an otherwise viable claim that the tree owner is responsible. Finally, no human may be at fault. Mother Nature is just as capable of leveling destruction as she is creating beautiful scenery.

1 An important distinction exists on this topic between a natural condition and one artificially created by a landowner. Generally, a landowner who changes the condition of the land in such a way that increases the risk of injury to others (planting trees, for example) will be subject to an increased standard or care should harm occur.

2 Some courts continue to recognize the old rule of nonliability of land owners for natural conditions existing in rural areas where parcels of land are substantially larger than their urban counterparts.

What do you mean, it depends? Depends on what? The other person harmed me!  I didn’t do anything to deserve it. I shouldn’t have to pay a lawyer to prove that I’m right. Doesn’t the law protect innocent people?

The general rule in North Carolina is that parties in civil cases pay their own attorney’s fees, regardless of who prevails at trial, unless a statute provides otherwise. The statutory exceptions to this general include the following types of claims, which authorize a party to request an award of attorneys’ fees:

Claims arising from personal injury or property damage, where the plaintiff recovers $10,000 or less and there was an unwarranted refusal by the insurance company to pay the claim.  (N.C.G.S. § 6-21.1)

Claims arising under a “note, conditional sale contract or other evidence of indebtedness.”  (N.C.G.S. § 6-21.2).  This covers traditional promissory notes, lease agreements, etc.  Note, however, that the amount of recoverable attorney’s fees is limited to 15% of the “outstanding balance” owed.

Claims arising under the North Carolina Unfair and Deceptive Trade Practice statutes.  (N.C.G.S. § 75-1.1, et seq.)

Claims brought by the other party that are found to be “nonjusticiable” (i.e., frivolous claims that involved “a complete absence of a justiciable issue of either law or fact”).  (N.C.G.S. § 6-21.5);

Claims arising from personal property or real property liens under Chapter 44A of the General Statutes.

Most business contracts contain some form of an attorney’s fee provision, which generally provides that, in the event either party breaches the terms of the agreement and the dispute is litigated or arbitrated, the losing party must pay the winning party’s attorney’s fees. Historically, North Carolina courts have refused to enforce these types of provisions.

That has now changed.

On June 27, 2011, North Carolina passed N.C.G.S. § 6-21.6, which expressly authorizes a prevailing party to recover reasonable attorney’s fees and expenses based on a reciprocal attorneys’ fee provision in a business contract. The law became effective on October 1, 2011, and applies to all business contracts executed on or after that date. Under the new law, a Court or arbitrator may award attorneys’ fees and expenses based on a contractual fee provision if:

1. the provision is reciprocal;
2. the provision is contained in a business contract; and
3. all parties to the contract sign it by hand.

Requirement of a reciprocal provision.
By its terms, the new statute only applies to attorneys’ fee provisions that are reciprocal, meaning that the provision is “applicable to all parties.”  § 6-21.6(a)(4). Provisions that authorize only one party to recover its fees will, therefore, remain unenforceable.

Requirement of a business contract.
The new statute also only applies to reciprocal attorneys’ fee provisions in “business contracts,” defined as, “[a] contract entered into primarily for business or commercial purposes.” Business contracts do not include (i) consumer contracts (entered into primarily for personal, family or household purposes), (ii) employment contracts (including traditional employer/employee contracts, as well as principal-independent contractor agreements); or (iii) contracts to which a North Carolina government or governmental agency is a party.

Method of signature execution.
For a reciprocal fee provision to be enforceable, each of the parties must have signed the business contract “by hand.” It is doubtful that electronic signatures, signature stamps or the like are sufficient to satisfy this requirement. Traditional, “ink” signatures should be used to ensure compliance with the execution requirement.

The amount awarded.
In determining the appropriate amount of attorneys’ fees and expenses to award a party, a court or arbitrator is required to consider 13 factors:

1. The amount in controversy and the results obtained.
2. The reasonableness of the time and labor expended, and the billing rates charged, by the attorneys.
3. The novelty and difficulty of the questions raised in the action.
4. The skill required to perform properly the legal services rendered.
5. 5. The relative economic circumstances of the parties.
6. 6. Settlement offers made prior to the institution of the action.
7. Offers of judgment pursuant to Rule 68 of the North Carolina Rules of Civil Procedure and whether judgment finally obtained was more favorable than such offers.
8. Whether a party unjustly exercised superior economic bargaining power in the conduct of the action.
9. The timing of settlement offers.
10. The amounts of settlement offers as compared to the verdict.
11. The extent to which the party seeking attorneys’ fees prevailed in the action.
12. The amount of attorneys’ fees awarded in similar cases.
13. The terms of the business contract.

Finally, although there is no statutory limit to the amount of attorneys’ fees and expenses that may be recovered in a particular case, the amount cannot be greater than the monetary damages actually recovered by the prevailing party on its underlying claims.

An Ounce of Prevention

Businesses would be wise to proactively take a second look at their existing contracts and take appropriate steps to revise them if necessary to comply with N.C. Gen. Stat. § 6-21.6. Doing so not only protects a business in the event of future litigation, but also provides leverage in favorably resolving potential disputes as they occur and prior to litigation.

The North Carolina State Bar certifies lawyers as specialists in designated practice areas as a service to the public. The program assists members of the public in the selection of legal counsel by identifying lawyers who have demonstrated special knowledge, skill, and proficiency in certain areas of law. The program also gives lawyers a credible way of making their expertise known to the public and other lawyers.

To be certified as a specialist in a practice area, a lawyer must have been in practice for at least five years, devote a significant part of his or her practice to the specialty area, attend continuing legal education (CLE) seminars in the specialty, be favorably evaluated by other lawyers and judges (peer review), and pass a written examination in the specialty practice area.

Preston Odom has been an attorney with James, McElroy & Diehl, P.A., since 2000, and concentrates his legal practice in the areas of appeals and trial-level litigation support.

The law provides mechanisms to protect victims of domestic violence. One such tool is a 50B Domestic Violence Protective Order. An entire courtroom at the Mecklenburg County Courthouse deals exclusively with domestic violence protective orders.

Chapter 50B of the North Carolina General Statutes allows parties to seek emergency relief and affords victims an opportunity to be heard on an expedited basis (generally the same day).

Filing for a 50B

In the event of domestic violence, a victim may first file a Complaint and Motion for a Domestic Violence Protective Order. A party may move the court for emergency relief if he  or she believes “there is a danger of serious and imminent injury to himself or herself or a minor child.” The Court will then hold an emergency ex parte hearing (which means that only the plaintiff is present) on the Complaint and Motion for a Domestic Violence Protective Order.

Chapter 50B Requirements

A finding of domestic violence, pursuant to Chapter 50B, requires a personal relationship between aggressor and victim, and includes, in part, “attempting to cause bodily injury, or intentionally causing bodily injury” or placing a person or a member of his or her family or household in fear of “imminent serious bodily injury or continued harassment…that rises to such a level as to inflict substantial emotional distress.” A personal relationship is defined as: current or former spouses, persons of the opposite sex who live together or have lived together, are related as parents and children, have a child in common, or are persons of the opposite sex who are in a dating relationship or have been in a dating relationship.

Getting an Order

If at the ex parte hearing, the Judge determines that there is a danger of serious and imminent injury, the judge will enter what is called a “ten day” ex parte domestic violence protective order. These orders remain in effect until there is a hearing where both parties are present, which is held within ten days or  seven days from the date of service of process on the other party, whichever occurs later. The goal at the hearing is to secure a domestic violence protective order which lasts for one year.

Where emergency relief is sought, but no ex parte order is entered, a hearing will be held after five days notice to the other party or after five days from the date of service of process, whichever occurs first. A hearing will not be held until and unless the opposing party is served.

Note that the Violence Against Women Act provides that no court costs will be assessed  for the filing, issuance, registration or service of a protective order or petition for a protective order or witness subpoena.

Effect of an Order

A domestic violence protective order can be tailored as needed. For example, it can require the defendant to:

• Stay away from the plaintiff
• Refrain from assaulting, threatening, abusing, following, harassing, or    interfering with the plaintiff and any children residing with the plaintiff
• Stay away from plaintiff’s family members
• Relinquish any weapons in his or her possession
• Stay away from plaintiff’s pets
• Stay away from the plaintiff’s place of work, school, shelter and the like

If an individual subject to a domestic violence protective order violates that order, the plaintiff may call the police and that individual will be arrested if the police determine there is probable cause to believe that the order was knowingly violated.  Alternatively, the plaintiff may file a motion for contempt.

Obviously a court order is just a piece of paper, but it is an important tool for victims of domestic violence and can be the first step in a victim protecting him or herself.

If you are victim of domestic violence, seek assistance. Shelters and hotlines are available, in addition to the legal protections described above1. If you think you are in immediate danger, call the police.  Otherwise, contact an agency or attorney to help you. United Family Services is a local agency which can help. Legal aid also offers assistance to victims of domestic violence. Get the help you need.

• Bill Diehl
• Rich Fennell
• Gary Hemric
• Ed Hinson
• Katie Holliday
• Russ Kornegay
• Casey Viser

First published in 1983, Best Lawyers compiles its list of outstanding attorneys by conducting exhaustive peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. The current edition of The Best Lawyers in America (2012) is based on more than 3.9 million detailed evaluations of lawyers by other lawyers.

As part of the days activities, James, McElroy & Diehl attorney Catherine Barnes will participate in the “Ask the Experts” panel discussion. Joining four other experts representing the legal, financial, marketing, human resources and banking industries, Catherine will help address questions from attendees on best business practices for fledgling startups and existing businesses to navigate through change and adapt to the new realities brought about by the economy and advances in technology.

JMD ranked in the following practice groups:

Tier 1 – Charlotte Metropolitan Rankings
Commercial Litigation
Criminal Defense: White-Collar – Litigation
DUI/DWI Defense
Family Law
Medical Malpractice Law – Plaintiffs
Personal Injury Litigation – Plaintiffs

Tier 2 – Charlotte Metropolitan Rankings
Criminal Defense: White-Collar – Governmental Investigations
Litigation – Construction
Litigation – Eminent Domain & Condemnation
Litigation – Labor & Employment
Litigation – Securities

U.S. News – Best Lawyers ranks U.S. law firms based on client and lawyer evaluations, peer review from leading attorneys in their respective practice areas and information provided by law firms as part of the formal submission process. Clients’ feedback addresses the practice groups’ expertise, responsiveness, understanding of a client’s business and needs, cost-effectiveness, civility, and whether a client would refer another client to the firm.

About the U.S. News Media Group
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About Best Lawyers
Best Lawyers® is the oldest and most respected peer-review publication in the legal profession. For over a quarter century, the company has helped lawyers and clients find legal counsel in distant jurisdictions or unfamiliar specialties. The 2012 edition of The Best Lawyers in America includes 41,284 lawyers covering all 50 states and the District of Columbia and is based on more than 3.9 million detailed evaluations of lawyers by other lawyers. Best Lawyers® also publishes peer-reviewed listings of lawyers in nearly 70 other countries, covering many of the world’s major legal markets. Best Lawyers® lists are excerpted in a wide range of general interest, business and legal publications worldwide, reaching an audience of more than 17 million readers.

“I feel like a criminal.”

In recent years, unscrupulous debt collectors have become much more aggressive in their collection tactics and efforts. Oftentimes, it is not the original owner of the debt – who may be more willing to work with consumers on payment plans or other alternatives – rather, it is third party debt collectors, who buy the debt for collection, that cross the line. These debt buyers’ businesses and jobs depend on the collector’s ability to collect on the debt, the time in which it takes for collection, and the amount collected. Coupled with the recent economic environment, this has led to more aggressive behavior and more panic for consumers.

Fortunately for consumers, North Carolina enacted the Fair Debt Collection Practices Act (N.C. G.S. § 58-70-1, et seq.) to allow consumers to fight back. This Act makes it illegal, in certain instances, for debt collectors to oppress, harass abuse, threaten, or engage in deceptive, fraudulent or misleading representation in attempting to collect a debt, amongst other prohibitions. This means that a debt collector may violate the act if he/she uses profane, obscene or abusive language; calls over and over; calls at times other than normal waking hours; or calls someone’s workplace (if they have been told not to do so). It is also forbidden for a debt collector to lie concerning the amount of a debt owed, their affiliation with any government agency, or that non-payment may result in arrest. A debt collector also cannot make or threaten false accusations, including notification to a credit reporting agency, that a consumer has not paid, or has willfully refused to pay a debt.

The penalties for an unscrupulous debt collector are equally severe. A debt collector who is found to have violated the act may be held liable for the amount of actual damages suffered by the consumer, in addition to statutory damages of between $500.00 and $4,000.00 for each violation, punitive damages, and the consumer’s attorneys’ fees.

If you get contacted by an unsavory debt collector, here are some tips that may prove helpful:

Get proof of the debt. You should make sure that you owe the money and that the collection agency, or their client, actually owns the debt. Also, ensure that the debt is still collectible and that the time allowed by law to collect on the debt has not expired. Some documents you may want the debt collector to send you include verification of the debt, including the name of the original creditor, the name and contact information for the collection agency, the original consumer account number, an itemized account showing the amount of the debt owed, the date of the original debt, when and how the debt was transferred (if applicable), and a copy of the contract or other document evidencing the debt.

Document The Debt Collector’s Words and Actions. It is a good idea to keep and maintain a detailed record of what the debt collector says and does, especially for any bad acts. The more specific and detailed you can be, the better off you will be down the road.

Be Careful What You Say. Anything you say can and will be used against you. The Fair Debt Act provides that debt collectors must identify themselves, let you know that they are attempting to collect a debt, and warn you that anything you say to them is fair game. Debt collectors will try to get as much information out of you as possible. They want to be able to track you and your finances. You may not need to provide your social security number or any financial information. If you are ready and able to pay the debt, be it through a payment plan or otherwise, make sure that you can afford what you agree to pay. Never promise a payment you can’t make. Know your rights. If you legitimately owe the debt and refuse to pay, a lawsuit may be brought against you to collect the debt. You can’t, however, be sent to prison because you can’t pay.

If you think your rights were violated during the collection of a debt, don’t be afraid to fight back.

You can contact the Better Business Bureau (www.bbb.org), the Federal Trade Commission (www.ftc.gov), the State Attorney General for North Carolina (www.ncdoj.gov), or you may be able to file a lawsuit against the debt collector for their bad acts.

On Tuesday, September 13, 2011, the North Carolina Senate voted 30-16 to put a constitutional amendment on the ballot in May 2012 seeking to further ban gay marriage in North Carolina. The House approved the initiative the day before, by a vote of 75-42. If approved by voters, the amendment would become effective January 1, 2013.

At the outset of this discussion, it is worth noting that North Carolina law does not presently permit or recognize gay marriage. General Statute § 51-1.2 specifically provides: “Marriages, whether created by common law, contracted, or performed outside of North Carolina, between individuals of the same gender are not valid in North Carolina.” Since that law went into effect on June 1, 2006, it has not been challenged in any North Carolina appellate court.

Previously, the legislature has voted down attempts to write a ban on gay marriage into our State’s constitution. North Carolina remained the sole Southeastern state without such a constitutional ban. However, the amendment was recently introduced again, and was this time passed by both houses.

The amendment, as approved by the legislature, would read:

“Marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.

This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.”

Interestingly, although the bill approved by the legislature contained the second paragraph (above), designed to narrow the scope of the amendment by expressly stating it would not be applicable to private contracts or their enforcement, due to an oversight only the first paragraph of the bill will appear on the ballot for voters’ decision. If the ballot initiative passes, confusion may ensue regarding which language will actually be added to the constitution.

In either event, the effect of the amendment if passed is unclear. The phrase “domestic legal union” has never before been interpreted by our Courts, has never before been written in our statutes, and has never before been interpreted by a court of any other state. The language is broad and potentially far-reaching, affecting legal rights for unmarried couples, both same-sex and opposite-sex.

The impact would most likely be seen in the following areas:

Domestic Violence Laws
Presently, relief for domestic violence victims is available not only to married couples, but also to: persons of the opposite sex who live together or have lived together; people who have a child in common, whether married or unmarried; current or former household members; and persons of the opposite sex who are in a dating relationship or who have been in a dating relationship. If the amendment passes, it could be argued that affording domestic violence protection to unmarried couples (whether same-sex or opposite-sex) is an unconstitutional recognition of “domestic legal union” other than “marriage between a man and a woman.” At least one other state court has found similar domestic violence protections to be unconstitutional after the passage of an constitutional amendment banning gay marriage.

Domestic Partnership Registration
At least seven local governments within North Carolina (the towns of Carrboro and Chapel Hill, the city of Durham, and the counties of Orange, Durham, Greensboro, and Mecklenburg) offer registration for domestic partnerships and some limited benefits to the registered partners of their employees. Additionally, a number of private employers offer benefits to the domestic partners of their employees. These registrations and the associated benefits would almost certainly be rendered unconstitutional.

Family Law Matters
For decades, North Carolina has recognized the legality and enforceability of private contracts between unmarried cohabitants regarding their finances and property rights, as well as equitable claims for relief upon a separation. If the amendment is adopted without the second paragraph (specifically recognizing the continued enforceability of private contracts), couples’ abilities to enter into enforceable private contracts could be drawn into question. Either version of the amendment could have significant impact on their rights to seek equitable relief in a court of law.

Our Courts have also recognized the rights of non-biological parents when an unmarried couple intentionally created a family and created a parent-child relationship with the non-biological partner. It is conceivable that a family court judge would view this relationship and the corresponding custodial rights as unconstitutional if the amendment is passed.

Estate Planning Issues
The enforceability of wills, trusts, and powers of attorney used by unmarried couples to provide for their end of life decisions and property transfers would be subject to significant uncertaintyin light of the amendment.

The latest census data (from 2010) estimates there are 27,250 same-sex couples and 222,832 unmarried, opposite sex couples residing together in North Carolina. If the amendment passes, it will impact a large number of North Carolinians in both the ways set forth above, as well as in ways presently unknown that will be determined as our courts wrestle with the application of the new law.